https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10971

DMK v Republic (Criminal Appeal E044 of 2025) [2026] KEHC 10971 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KEHC 10971 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E044 of 2025 S Mbungi, J June 26, 2026 Between DMK Appellant and Republic Respondent (Being an appeal against both the judgement and sentence of Hon. J. Irura - SPM delivered on 3rd April 2025 in Kigumo SPM’S Court SO case No. E021 of 2023) Judgment 1.The appellant herein was charged with the offence of incest contrary to section 20(1) of the Sexual Offences Act No.3 of 2006. The particulars of the offence were that on the 21st day of July 2023 at midnight at [Particulars Withheld] village, in Kigumo Sub County, within Murang’a County being a male person, the accused person caused his penis to penetrate the vagina of MJW, a female person who was to his knowledge his daughter, a child aged 9 years. 2.He was also charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No 3 of 2006. The particulars being that on the 21st day of July 2023 at midnight at [Particulars Withheld] village, in Kigumo Sub County, within Murang’a County the accused person intentionally touched the vagina of MJW a child aged 9 years with his penis. The Appellant pleaded not guilty to both counts, and the matter proceeded to trial. Facts at Trial 3.PW1 (MJW), was the complainant a minor of tender years, was examined by the court and found to be intelligent enough to understand the meaning of giving truthful evidence. She was accordingly affirmed and testified in Swahili. She stated that she was a pupil at [Particulars Withheld] Primary School in Grade 4, that her mother was VW and her father was DMK. She testified that while at home during the time she was in Grade 3, someone came at night while she was asleep in bed in the bedroom and removed her clothes. She was sleeping with her sister SW, VN and at times her mother and father. She stated that on the material night, her mother had gone to Nairobi and there was no lamp in the house. She was in bed sleeping with her sister SW. Her mother was not in the room where they were sleeping, but her father was at home. She testified that when the person removed her clothes, he did bad manners to her on her private part. After the incident, she told SW, who in turn told their grandmother. Their grandmother called their mother, who came and took her to Kigumo Hospital. She further testified that when the person did bad manners to her, she was in bed with SW, VN, and their father was also at home. The door was not broken into. She told SW that someone had done bad manners to her, and SW said it was their father. The person who did bad manners to her was in the house. 4.Under cross-examination, PW1 testified that the house they were sleeping in had two rooms, one for their father and mother and the other for the children. She stated that their father was asleep in their room, that the door was not broken and that her mother VW was in Nairobi. She was with SW, VN and herself, just the three of them. They did not scream. She did not know the person who did bad manners to her. It was at night and there was no light. She did not know why SW said it was their father. She stated that they informed their grandmother who lives in a separate house and does not live near them. SW was the one who called their grandmother. Their grandmother called their mother. She felt pain and was given medicine. She did not find their father the following morning. Their father stays in Mathareini and is always at home. The house they live in was built by their father. She did not see their father that night. 5.In re-examination, PW1 testified that she was sleeping in the house with SW, VN, and their father was also at home. Their grandmother lives in Giture. They were just the four of them in the house. In answer to questions by the court, she stated that SW is older than her and is in Form Three. 6.PW2, a female adult Christian, was sworn and testified in Swahili. She stated that she came from Mathereini and was a farmer. She recalled that on 22nd July 2023, she was not at home as she and her husband had a problem. She was called on phone and informed that MJW had been defiled. She was called by her mother who said that MJW had reported that her father had defiled her. She came home the following day and found the children playing. They came to her running. She took MJW to the room, removed her underpant, and did not see any blood stains. She decided to take her to hospital at Kigumo. When the child was examined, she was asked to report. The doctor did not tell her anything. They were asked to come the following day for medicine. She went home, slept, and the following day they came to collect the medication. She then went and made a report at the police station, reporting that her daughter had been defiled by her father. After the child was treated, she was issued with a P3 form, which was produced in court as MFI 1. Treatment notes were produced as MFI 2, and the PRC form as MFI 3. 7.She further testified that she was not at home when the defilement took place. She had separated from her husband, the father of her children, for about two weeks in July 2023. She had left the children with her mother, but they met with their father and went back with him to his home. She stated that MJW. was born on 3rd June 2014 and she had a copy of her birth certificate. The accused person in the dock was her husband with whom they had separated at the time. 8.Under cross-examination by T.M. Njoroge, PW2 testified that they had separated for about two weeks in July 2023. They fought and she left for her home and then went to Nairobi. Her husband used to work in Nairobi and came every weekend. She was a housewife. Their house was made of iron sheets and had three rooms. She had four children: SW, VN, and MJ She did not know where the children and their father slept. The children's room had one double-decker. She did not know if her husband was at home. The doctor did not tell her anything but said there was attempted defilement. The underpant did not have blood stains. Her mother's home was not very far from where the children were. Her mother called her and said MJW was complaining that she had been defiled. She reported the matter to the police and told them that her child's father defiled her. She was not at home when the defilement took place. 9.In re-examination, PW2 testified that her husband was working in Nairobi and used to come on weekends. The defilement took place on a Friday. She reported the matter to the police that the accused defiled their daughter. In answer to questions by the court, she stated that when she came from Nairobi she went to her mother's house, and went to their house after the accused was arrested. The house had not been broken into. 10.PW3, the Complainant's Sister a female minor aged 16 years, was sworn and testified in Swahili. She stated that she went to [Particulars Withheld] Secondary School. She knew the reason for swearing with the Bible so that she could tell the truth. In July 2023, she went home from school. At the time, their mother was not at home. Her father bought supper for them. They prepared and ate. Their father gave them his phone to play games. She then left MJ and the victim playing games and went to sleep. Their father then took his phone and left. In the morning, MJ told her someone had done bad manners to her. They slept with MJ and the victim. Their father did not come back. When their mother left, she left them at their grandmother's. They went to their father's house on the same day MJ was defiled. When MJ told her, she met with their grandmother and told her that someone had defiled MJ She did not say it was their father who defiled MJ 11.Under cross-examination, PW3 testified that she did not see their father that night. They had slept with MJ She did not hear any screams. There was no commotion at night. It was not true that their father asked her to move for him in their bed so that he could sleep in their bed. There was no electricity in their house. MJ told her that the person who defiled her told her to say it was their father. She did not hear any conversation between their father and MJ or with any other person. 12.PW4, a clinical officer, testified that the complainant was examined on 23rd July 2023, a day after the defilement. She was found to have a whitish discharge, pus cells, reddened labia minora, and a freshly broken hymen. The child was put on antibiotics and PEP drugs and was advised to follow legal action. The witness transferred the said information on the PRC form and also filled the P3 form on 23rd July 2023. She produced the treatment notes as Exhibit 2, the P3 form as Exhibit 1, and the PRC as Exhibit 3. 13.Under cross-examination for the accused, PW4 testified that the patient was brought to hospital on 23rd July 2023. The defilement took place on 22nd July 2023. The victim had not taken a bath. There was whitish discharge which on laboratory test confirmed the presence of pus cells. There was also a broken hymen. The child reported that it was her father who defiled her. The treatment notes had no hospital stamp. The witness's name was not indicated but the signature was included. The outpatient number was indicated on the treatment notes. The patient came on a weekend and the stamp was locked in the office. The laboratory personnel were the ones who prepared the laboratory results, which were also not stamped. 14.In re-examination, PW4 testified that the treatment notes had the signature and the outpatient number available at the hospital. The outpatient number was 11754/2023. The P3 form was duly stamped and signed. In answer to questions by the court, she stated that she signed the treatment notes and the P3 form. 15.PW5, the Investigating Officer. He stated that he was attached at Kamukunyi Police Station and was previously attached at Kigumo Police Station. He was the investigating officer in the case before court. The case had been reported by the complainant's mother who came in company of the victim. They reported that the victim had been defiled by her father. He was minuted to investigate the said case. On 27th July 2023, the complainant's mother called him and informed him that the accused had been arrested and was being held at Githareini within Kigumo. He proceeded there in company of his colleague where they found that the accused had been restrained at his cousin's house. They interrogated the accused person and confirmed that he was the one they were looking for. They arrested him and escorted him to Kigumo Police Station, together with his cousin. The accused person was subsequently charged before court with the offence of incest. 16.PW5 further testified that the victim's mother explained that the accused person was her husband and the father of the victim, but at the time they were separated. She said that she was called while in Nairobi by the victim's grandmother, and she came and reported the matter and took the child to hospital. The child was defiled on the night of 21st July 2023. The victim's mother reported that the person who had defiled her child was well known to her. She called him and informed him that the suspect had been arrested. The accused person in the dock was the one they went to collect at the shopping centre. He did not record the evidence of the complainant. He recorded the statement of the victim's mother while other statements were recorded by other officers. He obtained the birth certificate of the victim which showed that the complainant was aged 9 years. The victim was born on 3rd June 2014. The birth certificate indicated the name of the father as DMK He produced the birth certificate in court as Exhibit 4. 17.Under cross-examination by T.M. Njoroge for the accused person, PW5 testified that the report was made on 24th July 2023 by Veronica Wanjiru. She reported that the accused person defiled the victim. The accused person was charged with incest. After the report from the mother, it was established that the accused person was the father of the victim. The P3 form showed that the report was made on 23rd July 2023. The offence was indicated as having been committed on 21st July 2023. The P3 form was stamped on 24th July 2023 and signed on 23rd July 2023. The offence was committed on 21st July 2023. The child was taken to hospital on 23rd July 2023. The accused was charged in court on 31st July 2023. He did not visit the home where the defilement took place. He found the accused person at Githeerini shopping centre in a house belonging to his cousin. The victim was escorted by a lady police officer to the hospital. In re-examination, PW5 testified that the P3 form was to be taken to hospital on 4th July 2023 but it was taken before. The PRC form had the date of 24th July 2023. It was possible that the child was asked to go back to hospital the following day, hence the PRC form had the date of 24th July 2023. Defence Case 18.The accused, DMK, denies the charge of defilement/incest and raises a defence of alibi and malicious framing. He testified that he and his wife, VW, separated on 8/7/2023, after which she threatened to "leave me and kill me" and that he would "face the music." He contends that the charge is fabricated by his estranged wife in retaliation for their marital breakdown. The accused further asserts that on the date of the alleged offence, 21/7/2023, he was in Nairobi performing partition works at an office, far from Mathareini where the complainant resided, and that his wife had already abandoned the matrimonial home and was not present at the time of the alleged incident. He submits that the charges ought to be dismissed for want of credible evidence and as an abuse of the criminal process arising from a matrimonial dispute. The Appeal 19.Being dissatisfied by the decision of the trial court, the Appellant filed a petition of appeal on the following grounds:i.That, The trial magistrate erred in law and fact by failing to find out that it was mistaken identity.ii.That, The trial magistrate erred in law and fact by failing to consider that the elements of the offence charged was not proved beyond any reasonable doubts. And the medical document were not signed and stamped.iii.That, The trial magistrate erred in law and fact by failing to appreciate that the investigation police had failed to visit the scene. Prosecution had failed to prove their case beyond any reasonable doubts.iv.That, The trial magistrate erred in law and fact by failing to consider my plausible sworn defence which was not challenged by the prosecution side without a cogent reason to do so. Appellant's Submission 20.The appellant submits that the trial court failed to consider his defence and that the prosecution did not prove its case to the required standard. The burden of proof rests upon the prosecution, yet the trial magistrate failed to consider the appellant's plausible defence that he was not at home on the material day and that the investigation police neglected to visit the scene to verify whether there was any break-in or property damage. The court below also failed to consider that no positive identification was made, that the complainant did not expressly identify him in court, and that the defence of alibi supported by his children who testified before the court was a plausible defence that was ignored. The appellant urges this court to allow the appeal, quash the conviction, and set aside the sentence of 30 years imprisonment. Respondent's Submission 21.The respondent submits that the prosecution proved its case beyond reasonable doubt. The complainant's testimony was corroborated by medical evidence (PW4) confirming penetration of a child aged 9 years, and by the birth certificate (Exhibit 4, PW5) establishing the appellant as the victim's father. The defence of alibi was properly rejected as an afterthought raised at trial rather than during investigations, and the appellant's presence at the scene was confirmed by PW1 and PW3 who placed him in the locked house on the material night. The trial court correctly found that positive identification was not required where the perpetrator was known to the victim as her father, and that the familial relationship was uncontested. The appeal lacks merit and should be dismissed with the conviction and sentence upheld. ANALYSIS AND DETERMINATION 22.This being a first appeal, this Court is enjoined by well-established principles of law to re-evaluate the evidence adduced before the trial court, analyse it afresh and arrive at its own independent conclusions. The Court must, however, make due allowance for the fact that the trial magistrate had the distinct advantage of seeing and hearing the witnesses firsthand, thereby being better placed to assess their demeanour and credibility. As the Court of Appeal stated in Okeno v. Republic [1972] EA 32, the duty of the first appellate court is to subject the evidence to a fresh and exhaustive examination and come up with its own independent conclusion. This principle was re-affirmed in David Njuguna Wairimu v. Republic [2010] eKLR, where the Court of Appeal held that the first appellate court must analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on the evidence, without overlooking the conclusions of the trial court. 23.From the submissions by both the Appellant and the Respondent, the following issues crystallize for determination:i.Whether the offence of incest was proved beyond reasonable doubt, with particular focus on the elements of identification and penetration.ii.Whether the inconsistencies in the prosecution's evidence created reasonable doubt that should benefit the Appellant.iii.Whether the trial court erred in failing to consider that the investigation officer did not visit the scene of the crime. Whether the Offence of Incest was Proved Beyond Reasonable Doubt 24.The prosecution was required to prove the following elements:(a)that the accused is a male person;(b)that he committed an act which causes penetration with a female person;(c)that the female person is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother; and(d)that the female person is a minor. 25.The Respondent contends that the prosecution proved its case beyond reasonable doubt through the complainant's testimony, corroborating medical evidence, and the birth certificate establishing the appellant as the victim's father. However, upon careful re-evaluation of the evidence, this court finds that the prosecution failed to discharge its burden of proof to the required standard. a) On the Element of Identification 26.The principle of proof beyond reasonable doubt in criminal cases is the "golden thread" that runs through the criminal justice system. As established in Woolmington v DPP [1935] AC 462, the burden of proof rests squarely on the prosecution, and an accused person is presumed innocent until proven guilty. This burden never shifts to the accused. In the instant case, the evidence on identification is fraught with grave inconsistencies that cast reasonable doubt on the prosecution's case. 27.PW1, the complainant, testified in her examination-in-chief that a person came at night while she was asleep and removed her clothes. However, under cross-examination, she made the following critical admissions: "She did not know the person who did bad manners to her. It was at night and there was no light. She did not know why SW said it was their father." PW1 explicitly stated that she did not see the person who defiled her because there was no light in the house. This is a fundamental weakness in the prosecution's case. The complainant's failure to identify her assailant is fatal to the charge of incest, which requires proof that the perpetrator was a male person who, to his knowledge, was her father. 28.The Court of Appeal in Wamunga v Republic [1989] KLR 424 held that:"Where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction." 29.The recent Court of Appeal decision in Kiribai v Republic [2025] KECA 928 (KLR) emphasized that for the offence of incest to be established, the prosecution must prove among other elements that the perpetrator was identified. The court held: "Therefore, for the offence of incest to be established, the prosecution must prove;(i)that the offender is a relative of the victim;(ii)penetration or indecent Act;(iii)that the perpetrator was identified; and(iv)the age of the victim." 30.Similarly, in Enos v Republic [2024] KECA 1761 (KLR) , the Court of Appeal reiterated the same principles, stating that:"For the offence of incest to be established, the prosecution must prove;(i)that the offender is a relative of the victim;(ii)penetration or indecent Act;(iii)that the perpetrator was identified; and(iv)the age of the victim." 31.In AM v Republic [2025] KEHC 15828 (KLR) , the High Court emphasized that medical evidence alone, without positive identification of the accused, cannot sustain a conviction for incest. The court noted that while the clinical officer concluded that penetration had occurred, the accused was not examined, and the officer could not confirm whether he committed the offence. 32.In Kiarie v Republic [1984] KLR 739, the Court of Appeal emphasized that evidence of identification must be watertight to sustain a conviction. In that case, the court stated that identification by a single witness in difficult circumstances must be tested with the greatest care. 33.In this matter, the circumstances of identification were clearly unfavourable: The incident occurred at midnight, there was no light in the house, the complainant was asleep when the incident occurred, the complainant herself admitted she could not identify the person. 34.The trial court appears to have relied heavily on the fact that the appellant was the father and was present in the house. However, presence in the house alone, without positive identification, is insufficient to sustain a conviction. As held in Republic v Sebwato [1996] EA 174, where identification is in issue, the court must satisfy itself that the identification was positive and free from error. In Wachira v. Republic (Criminal Appeal E024 of 2023) [2024] KEHC 5972 (KLR), the High Court emphasized that where the complainant did not see the perpetrator, conviction cannot be sustained on speculation. 35.PW1's sister, PW3 (S, made a startling revelation during cross-examination that further undermines the prosecution's case. She testified that: "MJ told her that the person who defiled her told her to say it was their father." This evidence is of immense significance. If the complainant was instructed by the unknown assailant to falsely state that it was her father, this suggests that the actual perpetrator may have been someone else who was known to the complainant and who sought to deflect blame onto the appellant. This evidence creates serious doubt about the credibility of the identification and points to the possibility of mistaken identity or a deliberate framing of the appellant. b) On the Element of Penetration and Medical Evidence 36.While the medical evidence adduced through PW4 confirmed that the complainant had a whitish discharge, pus cells, reddened labia minora, and a freshly broken hymen, this evidence only proves that penetration occurred. It does not prove that the appellant was the perpetrator. The doctor testified that the child reported that it was her father who defiled her. 37.Moreover, the medical documents had evidentiary irregularities that the trial court should have considered. PW4 admitted under cross-examination that: the treatment notes had no hospital stamp, the witness's name was not indicated on the treatment notes, the laboratory results were not stamped 38.While the P3 form was duly stamped and signed, the irregularities in the other medical documents raise questions about the thoroughness of the medical examination and documentation. 39.In NKK v Republic [2016] KEHC 3487 (KLR), the High Court held that where medical evidence exists but does not positively link the accused to the offence, such evidence cannot form the basis of a conviction. 40.In PKN v Republic [2025] KEHC 8033 (KLR) , the court held that medical evidence is crucial in sexual offence cases but must be considered alongside other evidence. The court stated that penetration is an essential ingredient of incest, but the evidence must link the accused to the offence. 41.In HSA v Republic [2023] KEHC 21846 (KLR) , the court emphasized that there needs to be corroboration of evidence of a single witness unless the court, for reasons recorded, believes that the complainant in a sexual offence is telling the truth. The court further noted that contradictory evidence on key aspects of the prosecution's case creates reasonable doubt. c) On the Inconsistencies in the Prosecution's Case 42.The prosecution's case is riddled with material contradictions and inconsistencies:Whether the complainant identified the perpetrator: PW1 said she did not know who defiled her, yet the trial court proceeded on the basis that the father was positively identified.The instruction to implicate the father: PW3 testified that the complainant was told by the assailant to say it was their father. This crucial evidence was not adequately considered by the trial court.PW2's evidence: The mother (PW2) was not at home during the incident. Her evidence was hearsay as she was informed by her mother that the child had been defiled. She admitted under cross-examination that the doctor told her there was "attempted defilement," not full penetration.The nature of the evidence against the appellant: The evidence was largely circumstantial and based on the complainant's reported statement that it was her father, which, as PW3 testified, was what she was told to say. 43.The principle was stated in Okethi v Republic [1965] EACA 555 that a trial court should not consider the prosecution and defence evidence separately but must evaluate the evidence as a whole. The trial court failed to do this, particularly in relation to the inconsistencies in the prosecution's case. 44.In SM v Republic [2025] KEHC 1885 (KLR), the court emphasized that contradictions, gaps, inconsistencies, and falsehoods in the prosecution's evidence that are not resolved can create reasonable doubt that must benefit the accused. Whether the Inconsistencies in the Prosecution's Evidence Created Reasonable Doubt 45.The inconsistencies in the prosecution's evidence are material and create reasonable doubt that should benefit the appellant. 46.The most significant inconsistency is the contradiction between PW1's testimony and PW3's testimony regarding identification. PW1 said she did not know who defiled her, while PW3 said the complainant told her the assailant instructed her to say it was her father. This inconsistency is fatal to the prosecution's case because it undermines the credibility of the complainant's testimony and raises the possibility that the complainant was coached or coerced into implicating her father. 47.The Court of Appeal in Republic v Kudate & Another [2025] KECA 837 (KLR), citing the Supreme Court of India in Mallappa & Ors v State of Karnataka, stated that an appellate court should not overturn an acquittal on a mere difference of opinion, but only where there is illegality or perversity. Similarly, where there are inconsistencies in the prosecution's evidence, the court must give the benefit of doubt to the accused. 48.In GKR v Republic [2025] KEHC 6967 (KLR), the High Court quashed a conviction for incest where there were glaring contradictions, gaps, inconsistencies, and falsehoods in the prosecution's evidence. The court held that proof beyond reasonable doubt requires the prosecution to establish its case with consistent and credible evidence. 49.This court finds that the prosecution's evidence falls short of the required standard. The complainant's inability to identify the perpetrator, coupled with the evidence that she was instructed to falsely implicate her father, creates reasonable doubt that must benefit the appellant. Whether the Trial Court Erred in Failing to Consider that the Investigating Officer Did Not Visit the Scene 50.The appellant submitted that the trial court failed to consider that the investigating officer (PW5) did not visit the scene of the crime to verify whether there was any break-in or property damage. PW5 admitted under cross-examination that he did not visit the home where the defilement took place. 51.The failure to visit the scene is a material omission in the investigation. If the investigating officer had visited the scene, he could have verified crucial details, such as:i.Whether the door was broken into or forced openii.Whether there were any signs of a struggleiii.The sleeping arrangements in the houseiv.Whether the appellant's presence at the scene could be verified 52.In Bukenya & Others v Uganda [1972] EA 549, the Court of Appeal for East Africa held that the prosecution is under a duty to call all necessary witnesses to prove its case, and failure to call crucial witnesses can be fatal to the prosecution's case. 53.While the investigating officer is not necessarily a crucial witness whose absence is fatal to the prosecution's case, the failure to visit the scene is indicative of an incomplete investigation. This omission, combined with the other deficiencies in the prosecution's case, reinforces the conclusion that the prosecution failed to prove its case beyond reasonable doubt. Determination 54.Having carefully re-evaluated the evidence adduced before the trial court, this court makes the following findings: 55.Identification: The complainant (PW1) did not identify the appellant as the perpetrator of the defilement. She testified that she did not know who defiled her because there was no light in the house. Her sister (PW3) testified that the complainant was instructed by the assailant to say it was her father. This evidence creates reasonable doubt that the appellant was not the perpetrator. 56.Medical Evidence: While the medical evidence proves that penetration occurred, it does not link the appellant to the offence. The medical evidence does not contain any DNA or other scientific evidence connecting the appellant to the complainant. 57.Inconsistencies: The prosecution's case is riddled with material inconsistencies that create reasonable doubt. These inconsistencies were not resolved by the trial court. The inconsistencies create doubt as to whether it was the Appellant or not, any doubt always benefits an accused. 58.Standard of Proof: The prosecution failed to discharge its burden of proof beyond reasonable doubt. The evidence adduced does not meet the standard required for a conviction for the offence of incest. Orders 59.For the reasons stated above, this appeal is allowed in the following terms:i.The conviction of the appellant for the offence of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006 is hereby quashed.ii.The sentence of 30 years imprisonment imposed upon the appellant is hereby set aside.iii.The appellant is hereby acquitted of the offence and shall be set at liberty forthwith unless otherwise lawfully held.iv.Right of Appeal 14 days explained. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 26TH DAY OF JUNE, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Zilda/ Angong’aMs. Sandra KathuriMa for the ODPP present online.Appellant present online.